Ward Churchill testifies during his reinstatement hearing at the Denver City and County Building in Denve, Wednesday, July 1, 2009. Ward Churchill is in a Denver court arguing for his job. He was fired after writing an essay in which he likened Sept. 11 victims to a Nazi.

The Colorado Court of Appeals has upheld a lower court decision denying University of Colorado professor Ward Churchill’s effort to get his job back.

The court ruled that Denver District Judge Larry Naves was right to direct a verdict in favor of the university and to find that the university was entitled to “quasi-judicial immunity.”

“We conclude that the nature of the decision reached by the university and its regents, and the process by which that decision was reached, shared enough characteristics with the judicial process to warrant absolute immunity from liability,” states the opinion from Judge Dennis Graham, who was writing for the Court of Appeals.

Churchill’s lawyer, David Lane, said he will try to convince the Colorado Supreme Court to take up the case. He predicted the case could eventually end up before the U.S. Supreme Court. Churchill has vowed that he will teach again at the university.

“All I can say is that it’s a shame that in America some of our most cherished freedoms are in the hands of the politicians and bureaucrats in black robes to protect,” Lane said.

Churchill’s termination came after an essay he wrote that likened some victims of the Sept. 11, 2001, attacks to a World War II Nazi official. CU investigated whether his essay was protected under the First Amendment and found that it was. But while the investigation was underway, academics came forward and accused Churchill of plagiarism and fraud in scholarly writings, which led to his termination.

Churchill sued the university and was awarded $1 in damages by Denver jurors who determined that he was fired in retaliation for his speech.

But then-Chief Judge Naves, who has since left the bench, decided not to give Churchill his job back and set aside the jury’s verdict. In a decision that was left until after the trial to decide, Naves also ruled that CU’s regents, who are elected, acted as a “quasi- judicial” panel that had immunity from the lawsuit.

“It’s important to remember that a jury found that the regents violated the First Amendment,” Lane said. “And now the Court of Appeals is letting them get away with it.”

The Court of Appeals held that Churchill would have had to establish that his First Amendment rights had been violated when the university decided to investigate him.

“Whether an investigation alone is sufficient to constitute an adverse employment action has not been resolved by the United States Supreme Court, and there does not appear to be a definitive consensus on the matter among federal courts,” the ruling states.

The opinion stressed that Churchill continued to be paid and held his position as professor with tenure while the investigation into his activities was underway.

The opinion further stated that the regents, as an independent and elected board, “can conduct their functions without harassment or intimidation.” It rejected Churchill’s appeal, which argued that as elected officials, the regents were under extreme political pressure to fire him.

“Simply because regents are elected does not defeat impartiality,” stated the ruling, adding that the dismissal process gave Churchill “extensive procedural safeguards.”

The opinion rejected the assertion that the regents had acted with bias before voting to fire him.

“That a university is zealous in policing the academic standards of its faculty does not demonstrate bias against a noncompliant faculty member so much as it demonstrates a bias in favor of compliance with the rules of academia,” the opinion stated.

Concurring with the opinion written by Graham were Judges Diana Terry and Laurie Booras of the Court of Appeals.

Christopher N. Osher is a reporter on the investigation team at The Denver Post who has covered law enforcement, judicial and regulatory issues for the news organization. He also has reported from war zones in Africa.

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